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Saturday, February 7, 2009

An Internet without Newspapers:

When newspapers cease to exist, who will supply the news for all those folks who claim they don't need newspapers because they get their news on the Internet? I conduct a small study of the question in my latest Rocky Mountain News column, Dying newspapers, vanishing coverage.

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Friday, February 6, 2009

Wyoming legislature kills anti-SSM amendment:

The news for gay marriage advocates hasn't been especially good lately. But today the Wyoming state house defeated a proposed state constitutional amendment limiting marriage to one man and one woman. The defeat is especially significant because, in a legislative body in which the GOP enjoys a 41-19 advantage, sixteen Republicans joined all nineteen Democrats to vote against. (HT: Michael Petrelis.)

Related Posts (on one page):

  1. How Wyoming beat an anti-SSM amendment:
  2. Wyoming legislature kills anti-SSM amendment:
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The Orin postulate strikes again:

Following up on Jonathan's post about rendition, Panetta also said that the CIA might use interrogation techniques beyond those already approved by President Obama. With permission from the lawyers and the President, of course. As I read Panetta's comments, the Obama CIA's use of coercive techniques wouldn't be torture because we would never do that -- no matter the circumstances. It also wouldn't be "enhanced interrogation" because that's what Bush did. It would simply be "additional authority."

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Panetta on Obama Rendition Policy:

The AP reports:

The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.

That has long been U.S. policy, but some former prisoners subjected to the process — known as extraordinary rendition_ during the Bush administration's anti-terror war say they were tortured.

"I will seek the same kind of assurances that they will not be treated inhumanely," Panetta said Friday in his second day before the Senate Intelligence Committee. "I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries." . . .

Panetta said the Obama administration will no longer move detainees to secret CIA prisons for interrogation, because the so-called "black sites" have been ordered closed. But it will move prisoners to other countries for prosecution, he said.

UPDATE: More at Dissenting Justice.

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"Are Law Professors Good Political Appointees?"

My colleague Ann Carlson (Environment & Law) offers some thoughts.

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What Do Supreme Court Precedents Tell Us About Removal of Books from School Libraries?

I often hear arguments that the Supreme Court has held that school boards are limited by the Free Speech Clause in their ability to remove books. A commenter on the first thread in this chain offers an example:

The distinction is that the school library already had the copy and then removed it. While many will debate whether that distinction makes a difference, it does under Supreme Court jurisprudence.
In fact, the U.S. Courts Web site says the same. [UPDATE: I e-mailed the Administrative Office of the U.S. Courts about this, and they removed the erroneous description.]

But this turns out not to be an accurate statement of what the Supreme Court has actually held. This issue was indeed before the court in Board of Ed. v. Pico, and four Justices did take the view that library removal decisions were generally unconstitutional if they were motivated by disapproval of the ideas that the book expresses (though would be permissible if they were motivated by other, supposedly more neutral, factors, such as the book's vulgarity or age-inappropriateness or inaccuracy). And the four Justices were joined by one Justice in affirming the lower court's decision, which refused to grant summary judgment in favor of the school board.

But there were precisely the same number of votes — four — for the view that even viewpoint-based removal decisions were generally constitutional (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans) as there were for the view that such decisions were generally unconstitutional. The swing vote, Justice White, deliberately did not opine on the question; Pico thus left the issue 4-4.

Why did Justice White agree as to the bottom line action — affirming the court of appeals decision — with those Justices who thought viewpoint-based removals were unconstitutional? Simply because he did not want the issue resolved at that point, and procedurally the way to avoid that was to affirm. Here's what happened, in Justice White's own words (emphasis added):

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

So that's why Pico has no precedential value on this question. The Court's fractured decision in United States v. American Library Ass'n — where there was also no majority opinion — doesn't resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a "designated public forum" that's generally open for a nearly limitless variety of speech, then the library wouldn't be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There's no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.

In some ways, NEA v. Finley is somewhat on point, because it too involves government action that aims to impose some quality judgments, and that is inherently content-based. And Finley does suggest that "invidious viewpoint discrimination" in such judgments may be unconstitutional, though presumably non-invidious viewpoint discrimination would be permissible.

But Finley's point is just a suggestion — the Court specifically stresses that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination," and while there's also wording there that suggests such invidious viewpoint discrimination would be impermissible, there's no square holding. There is also no definition of when viewpoint discrimination becomes "invidious," and it's not clear to what extent the Finley case, involving arts grants, would carry over to the public library context (and especially public library books aimed at children).

(Note that Pico was a school library case, and one could certainly argue that decisions as to other public libraries, and especially the adult-aimed collections of those libraries, are constitutionally different from decisions as to school libraries or as to the children's collections of other public libraries. But while this isn't an implausible argument, it is again not one that is firmly supported by existing precedent.)

So all this should make clear, I think, that there's no answer from the Supreme Court on the subject; nor to my knowledge is there a broad and firm consensus of lower courts. My sense is that, when it comes to shelving and removal decisions, then-Justice Rehnquist's argument in Pico is the more persuasive one, at least as to the decisions in the inherently content-based field and often viewpoint-based field of what is to be on public school library shelves (though not necessarily as to Internet access decisions, which could be content-neutral and especially viewpoint-neutral). (I also think it's quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren't unconstitutional or even more broadly rights-violating. Of course, as with many ethical judgments, such a judgment will turn considerably on the details of each case.)

Related Posts (on one page):

  1. What Do Supreme Court Precedents Tell Us About Removal of Books from School Libraries?
  2. What May a School Board Do When It Concludes an Elementary School Library Book Omits Important Information?
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Identity and the Exclusionary Rule: Why United States v. Farias-Gonzales Was Wrong To Apply Hudson v. Michigan Balancing: On Tuesday, the Eleventh Circuit handed down an important decision on the Fourth Amendment's exclusionary rule: United States v. Farias-Gonzales, written by Judge Cox, and joined by Judge Pryor and Judge Black. Farias-Gonzales applies the Hudson v. Michigan, 547 U.S. 586 (2006), balancing framework to hold that identity information cannot be suppressed under the Fourth Amendment.

  Although the ultimate result is plausible, I think the court's reasoning is clearly incorrect: Hudson cannot properly be applied in the way the Court did. In this post, I want to explain why the Eleventh Circuit misapplied Hudson. I'll also explain why the court's approach is very troubling, and why other courts need to be aware of the Eleventh Circuit's error. Finally, I'll speculate as to how this error happened: This may have been another example of a court reaching out and deciding an issue not briefed, and then getting it wrong without the benefit of briefing.

  I. The Issue

  Imagine the police stop a person suspected of being an illegal immigrant. The police unlawfully search the suspect in violation of the Fourth Amendment, and the unlawful search leads the police to learn the suspect's identity as an immigrant who was previously kicked out of the United States and then illegally reentered. The government brings criminal charges for illegal reentry, and to prove its case seeks to use evidence of the suspect's identity learned as a fruit of the unlawful stop. Here's the interesting Fourth Amendment question: Is the evidence of identity admissible?

  It's a surprisingly tricky question, I think. On one hand, the evidence was obtained as a fruit of an unlawful stop, so you could say it should be suppressed. On the other hand, identity is not a fact about a specific act; it is more like a status. So if the evidence gets suppressed, the feds still know who the person is. Can they just re-arrest the person on the spot at the suppression hearing? Or do they have to let the person go and forget what they know? These sorts of puzzles have sometimes led the Supreme Court to treat identity as sui generis in criminal cases. See, e.g., Pennsylvania v. Muniz (adopting "routine booking exception" for Miranda that exempts identity from suppression); Hiibel v. Sixth Judicial District Court (considering when identity can be self-incriminating for Fifth Amendment purposes).

  In the Fourth Amendment context, courts have generally dealt with this issue by relying on dicta from INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Lopez-Mendoza involved suppression of identity evidence on Fourth Amendment grounds at a civil deportation hearing. Although that involved a civil case, and its holding seems limited to civil cases, Justice O'Connor's majority opinion also contained this very broad statement that on its face also applies to criminal proceedings:
The "body" or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred. See [Gerstein v. Pugh,] 420 U. S. 119 (1975); Frisbie v. Collins, 342 U. S. 519, 342 U. S. 522 (1952); United States ex rel. Bilokumsky v. Tod, supra, at 263 U. S. 158.
This line is technically dicta, and the cases cited as authority don't back up the statement. But circuit courts generally have concluded that this passage pretty much settles things based on the certainty and broad scope of the Supreme Court's language. See United States v. Bowley, 435 F.3d 426 (3rd Cir. 2006), United States v. Navarro-Diaz, 420 F.3d 581 (6th Cir. 2005), United States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999); United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994).

  II. The Eleventh Circuit's Decision in Farias-Gonzales

  That brings us to this week's decision, an opinion by the Eleventh Circuit in United States v. Farias-Gonzales, written by Judge Cox, and joined by Judge Pryor and Judge Black. Farias-Gonzales reaches the same result as the other circuits — the court allowed the identity information — in a case with nearly identical facts as the other cases. But it did so using a very different and far-reaching rationale. Instead of concluding that the issue was settled by Lopez-Mendoza, the Eleventh Circuit held that identity information is not subject to suppression under the balancing framework of Hudson v. Michigan, 547 U.S. 586 (2006).

  The court reasoned that under Hudson, the proper question was one of cost-benefit: "whether the exclusion of identity-related evidence in a criminal prosecution, where the evidence is offered solely to prove the identity of the defendant, is justified on the ground that the deterrence benefit of excluding the evidence outweighs its social costs." The court reasoned that the social costs of excluding identity evidence in criminal cases was high: A suspect's identity is often needed to prove elements of crimes (like proving a person is a felon for a felon-in-possession charge) or to make accurate sentencing enhancements. In contrast, the deterrent role of suppression would be low, because the police could find identity another way and re-indict the defendant based on the alternative method of proving identity.

The Court concluded:
As in Hudson, the social costs of excluding evidence in this case are great, while the deterrence benefits are minimal. Therefore, we hold that the exclusionary rule does not apply to evidence to establish the defendant’s identity in a criminal prosecution, and accordingly, the fingerprint and photograph evidence in this case offered to prove Farias-Gonzalez’s identity is not suppressible. The district court did not err in concluding that identity-related evidence is not suppressible.

  III. My Analysis

  Several circuits have held that identity evidence cannot be suppressed in criminal cases based on the dicta from INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), and given the broad language from that case, I cannot fault them. However, reaching the same result using Hudson v. Michigan balancing is clearly incorrect.

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What May a School Board Do When It Concludes an Elementary School Library Book Omits Important Information?

A U.S. Court of Appeals for the Eleventh Circuit panel just handed down a monster 177-page decision on the subject (with a two-judge majority and a one-judge dissent). I think the majority got it mostly right, in upholding the school board's decision about the book; and I wanted to blog a few posts about various aspects of the problem.

1. The concrete details (albeit necessarily oversimplified): The Miami-Dade school district had a bunch of copies of A Visit to Cuba and its Spanish version Vamos a Cuba. The book (the text of which is included at pp. 175-77 of the decision) is a short and bland item, with no mention at all that Cuba is an oppressive dictatorship. Many people objected to the book on the grounds that this omission (plus some other items) made the book inaccurate; the school board eventually removed the book. The question is whether this removal violates the First Amendment.

The question that the panel discussed was "whether the School Board was motivated to remove Vamos a Cuba because of inaccuracies [in the book]" as opposed to "simply because [the Board members] dislike the ideas contained in [the] book[]." (As I'll mention later, that might not be the right constitutional standard, but the majority used the standard because it was in its view the most plaintiff-friendly plausible standard, and yet the plaintiffs would lose even under it.) Some of the discussion was about some relatively minor inaccuracies -- for instance, whether a particular illustration properly depicts "paintings made by people who lived in Cuba about 1,000 years ago" (it doesn't) -- but it's pretty clear that the removal decision wasn't based on those inaccuracies.

Much of the discussion was about the supposed inaccuracy of the statement that "People in Cuba eat, work, and go to school like you do." The majority repeatedly and sharply condemned this statement as inaccurate, on the grounds that "It is simply not true that people in Cuba “eat, work, and go to school” the same way that American children do." "[I]n Cuba food is rationed by the government." "In Cuba there is “little private work,” and “it [is] a crime to exercise private initiative or to have private practice of a profession.”" "The book’s assertion that people in Cuba go to school “like you do” is false, too. In addition to agricultural field work being a mandatory part of school for Cuban children, the Human Rights Report found that elementary and secondary students receive “obligatory ideological indoctrination.”"

But while I sympathize with the majority's position, I think it places too much weight on one interpretation of "like you do." As the dissent points out, "It appears fairly evident that this short sentence is meant to show simply that other children in other cultures also do those things" -- basically, "You eat, work, and go to school, and so do people in Cuba." The very next sentence does say, "Life in Cuba is also unique," and the rest of the book mentions differences in food, schooling, and work. I think it's unlikely that a 4-to-8-year-old reading the book will assume "like you do" means "in exactly the same way as you do."

2. The real problem with the book, it seems to me, is not with any inaccurate statements the book makes. It's with what the book excludes, and thus with the overall picture that it paints (something that the majority and the critics of the book also stress). The book omits what to many people is the most important fact about Cuba -- that it's an oppressive Communist dictatorship. To be sure, this is a fact that isn't trivial to convey to 4-to-8-year-olds, but something of it could be conveyed (other books in the series mention the dire poverty or the legacy of war in other countries).

And it's the absence of this fact that makes the book misleading. As the opinion points out, the book is not that different from an "A Visit to 1930s and 1940s Germany" that omitted any mention of anti-Semitism or tyranny, or "A Visit to the early 1800s American South" that omitted any mention of slavery. Whether or not the book said "People in the Third Reich [or 1830 Alabama] ate and worked like you do," the main problem would be in what the book excluded not with what it included.

3. It seems to me that elementary schools are eminently entitled to exclude books that omit such important information from their libraries. An elementary school library is a place where the school itself provides books that its management (ultimately, the public) thinks are worthwhile for students, and that its management is prepared to endorse. What's more, the young readers are unlikely to read the books with great skepticism, nor are they likely to use each book as a starting point for a broader research program on the subject. (Occasionally, a child will get excited about a topic and want to read much more about it, but not often and certainly not always.)

The school should be entitled to make sure that a book it includes in its library adequately conveys the information in a way that doesn't leave an unduly misleading impression. (I say "unduly" because this will always be a matter of degree; any short book, and for that matter any long one, will always oversimplify things in certain ways that may end up misleading people.) The school need not do so in all instances. But it should be free to do so when it chooses.

The dissent's response -- "The answer to books that do not provide all the information a reader wants is to find another book. If a reader is curious about the Castro regime, he can find another book that enlightens him further." -- doesn't work. The school is aware that many readers won't want to find another book, and of course many readers who read the bland summary of Cuba won't be curious about the Castro regime because they won't even know about the Castro regime, and wouldn't be curious about it even if the book mentioned the word "Castro." The school should be able to make sure that even readers who read this one book won't come away with a picture of Cuba that omits a fact that the school reasonably believes to extremely important.

4. The dissent also responds by arguing that the School Board was really motivated by "a political motive" -- by the school board's disagreement with the "ideas or points-of-view" that the book conveyed -- rather than by "legitimate pedagogical concerns" such as the possibility that the book conveyed "inaccuracies by omission." And of course the critics of the book did loathe Castro's regime, and thought the book conveyed a bad point of view.

But they thought it conveyed a bad point of view precisely because they thought the book was inaccurate by omission. The book effectively conveyed the message that Cuba is much like America, except somewhat poorer and with a somewhat different lifestyle. Whether that's accurate or not depends on your viewpoint about the significance of its being an oppressive dictatorship. The worse the Castro regime is in your view, the more inaccurate the book is by omission.

Most decisions about what facts to include and which to exclude are subjected. Some people might think that including some fact is important; others might disagree. Much of the judgment will turn on their viewpoints about the significance of various evils (or goods), about what the most important take-away message from some event or circumstance might be. One can't entirely be "viewpoint-neutral" in evaluating claims of inaccuracy by omission, especially as to controversial topics, because what is a significant omission and what's not is inherently tied to one's viewpoint about the events.

I think that on balance this is an excellent illustration for why there shouldn't be any constitutional problem even with School Board members' removing a book "simply because they dislike the ideas contained in [the] book[]." But even if one takes the view that removal is permissible only when the book is inaccurate (or vulgar or some such), the School Board's decision that this book is inaccurate strikes me as eminently defensible -- in my view, actually correct, but in any case well within the School Board's rightful discretion to control what messages it conveys through its elementary school libraries.

I'll try to post later today about the constitutional precedent on the subject (the short summary is that the matter is highly unsettled), on whether it should make a constitutional difference that the School Board reversed the decisions of other review committees that would have retained the book (I will argue that it shouldn't), and more broadly on whether there should be any Free Speech Clause constraints on school library decisions in this area (I will argue that there shouldn't be, either as to acquisition of books or as to removal of books).

Related Posts (on one page):

  1. What Do Supreme Court Precedents Tell Us About Removal of Books from School Libraries?
  2. What May a School Board Do When It Concludes an Elementary School Library Book Omits Important Information?
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The Atlas Global Initiative: The Cato Institute Center for the Promotion of Human Rights is now The Atlas Global Initiative for Free Trade, Peace and Prosperity. Its mission statement says the Initiative
seeks to increase the understanding of ideas and policies based on the inalienable human rights to life, liberty, and the pursuit of happiness. It offers a human-rights-based alternative to coercive ideologies worldwide by showing the justice and the practical benefits of personal liberty and limitations on state power. The Initiative creates, manages, and promotes products and programs in a number of languages and encourages worldwide cooperation among those who understand and value liberty.
As a result of this shift, Tom Palmer has now moved from The Cato Institute to the Atlas Foundation. Tom has been spreading libertarian ideas by traveling throughout the world to help identify and support local libertarians ("liberals" in Europe) since before the fall of the USSR. I wish him and his new endeavor all the best. Here is a video explaining the new organization.



Hat tip: Laura Barnett

Could the Stimulus Start a Trade War?

Some commentators and trade experts have expressed concern that the "Buy American" provisions in the stimulus are not only wasteful, but potentially harmful in that they could be a prelude to greater protectionism, both here and abroad. For instance, last Saturday in the NYT, Douglas Irwin wrote:

Steel industry lobbyists seem to have persuaded the House to insert a “Buy American” provision in the stimulus bill it passed last week. This provision requires that preference be given to domestic steel producers in building contracts and other spending. The House bill also requires that the uniforms and other textiles used by the Transportation Security Administration be produced in the United States, and the Senate may broaden such provisions to include many other products.

That might sound reasonable, but history has shown that Buy American provisions can raise the cost and diminish the effect of a spending package. . . . While this is a windfall for a lucky steel company, steel production is capital intensive, and the rule makes less money available for other construction projects that can employ many more workers.

American manufacturers have ample capacity to fill the new orders that will come as a result of the fiscal stimulus. In addition, other countries are watching closely to see if the crisis becomes a general excuse for the United States to block imports and favor domestic firms. General Electric and Caterpillar have opposed the Buy American provision because they fear it will hurt their ability to win contracts abroad.

They’re right to be concerned. Once we get through the current economic mess, China, India and other countries are likely to continue their large investments in building projects. If such countries also adopt our preferences for domestic producers, then America will be at a competitive disadvantage in bidding for those contracts.

The Senate's "Buy American" provisions are even worse, and could have significant trade implications while providing minimal offsetting employment benefits, noted trade economists warn. Pascal Lamy, head of the World Trade Organization, has also expressed concern.

Buy local” measures by governments will jeopardise export sector jobs and risk setting the world on a damaging downward spiral of beggar-thy-neighbour protectionism, the head of the World Trade Organisation has warned.

Speaking to the Financial Times, Pascal Lamy, WTO director-general, said pressures for economic nationalism were an inevitable response to the global crisis, but in an integrated world economy such measures were much more dangerous than in the past.

“If you start killing imports, you will kill exports,” Mr Lamy said. And since a high proportion of global output depended on international supply chains, shrinking trade flows would have a huge multiplier impact on world production and jobs.

Mr Lamy would not comment directly on the Buy American provisions in the US economic stimulus bill, which potentially could be the subject of WTO litigation, but said that Washington, like other governments, had to abide by its international commitments.

Should we be worried? Daniel Drezner tries to inject a dose of optimism. I hope he's right.

Related Posts (on one page):

  1. Debating the "Buy America" Provisions:
  2. Could the Stimulus Start a Trade War?
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Oh, No!! It's Jefferson's Mammoth!

So all this time I've been in search of Jefferson's moose, and now I find that I'd been searching for the wrong huge mammal! Jefferson's mammoth has been unearthed, right under the soon-to-be-built Thomas Jefferson School of Law in San Diego ... Seriously. It could only have been better and more apt if they had found the bones under the Rotunda at U VA.

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Professor Accused of War Crimes Arrested:

The AP reports that Goucher College professor Leopold Munyakazi was arrested for violating the conditions of his visa. [What, you were expecting someone else?] Munyakazi is accused of participating in the Rwandan genocide, charges he denies.

Munyakazi is charged with murder and several genocide-related counts, according to a copy of an indictment provided by Munyakazi. Goucher officials said they gave Munyakazi a copy of the indictment, which they received from a Rwandan prosecutor.

Alison Des Forges, senior adviser to Human Rights Watch's Africa division, reviewed the indictment and said it contained details that do not "fit historical facts of the time." For instance, it is unlikely that Munyakazi organized a militia associated with a party that was opposed to the party he was affiliated with, Des Forges said.

Goucher suspended Munyakazi because the allegations are so serious, college President Sanford Ungar said earlier in the week, adding the removal wasn't a judgment of the professor or the charges.

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Stimulis: Because All Economies Have Performance Issues:

Very funny.


Political bloggers: Obama nominees missteps serious but not critical. Obama has strong but limited influence over Cong. Dems.:

This week's National Journal poll of leading political bloggers asked, "How much damage have controversies surrounding the nominations of Tom Daschle, Timothy Geithner and William Lynn done to President Obama's image?" On the Right, the leading choice was "some", with about a quarter answering "a great deal" or "only a little." On the left, the leading choice was "only a little" (53%), while "some" got about a third.

My view: "Daschle's tax avoidance was impossible to defend as minor or just an honest mistake. It helps Obama in the long run that he will not be in the Cabinet, since he would have been a visible link between the administration and the Rangel/Dodd/Frank congressional culture of corruption. Lynn broke no law (even though his lobbying work offends the far left), and Geithner's original error really was caused by his tax software (as demonstrated by my Volokh Conspiracy colleague James Lindgren)." I think Daschle is a big setback this week, but it will eventually be forgotten--and having someone like Tennessee Governor Phil Bredesen rather than Daschle will be much better for Obama (and the country) in the long run.

The second question was: "Based on events of recent weeks, how much sway do you think President Obama will have over congressional Democrats?" On a 1-5 scale, the Left voted for 4.0, and the Right for 3.2. My vote was a tenative 4. "We don't know yet for sure if Pelosi/Obey turning the 'emergency stimulus' into a massive permanent increase in ordinary domestic spending was contrary to Obama's wishes. If so, it suggests that Obama's influence over Congress may be weak. If Obama likes what the so-called 'stimulus' has become, this suggests that the new administration might be as fiscally irresponsible as the previous one."

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Jonathan Rauch Criticizes Blagojevich Impeachment Proceedings:

The column is here, at least for this week. Rauch is a very thoughtful and fair-minded columnist, and his criticisms are always worth taking seriously. Here's the start and the finish of the column:

Suppose, at least for the time it takes to read the next several paragraphs, that the ousting of Illinois Gov. Rod Blagojevich was a political railroading. Suppose the intention, whether out of malice or opportunism or both, was to overturn the 2006 election. What, actually, would that have looked like? And how different would it have looked from what happened last week?

I think that Blagojevich is probably a crook, and so does everyone else, so the question may seem academic. But it's not. Overturning an election is fundamentally antidemocratic and, in a democracy, potentially dangerous. When it needs to be done, the proceedings need to be objectively distinguishable from a railroading. In other words, the rules must be scrupulously fair. Otherwise, the process for removing corrupt politicians becomes, itself, indistinguishable from political corruption....

"Maybe one day it might happen to you," Blagojevich warned the state senators. He called his removal "a dangerous precedent that could have an impact on governors in Illinois and governors in other states."

He had a point. In the scramble to remove him, too many corners were cut. Not legal corners -- the law was faithfully executed -- but prudential ones. The press and the public were too quick to take a prosecutor's accusations at face value. The Illinois Legislature was too willing to act as an arm of the prosecution instead of an independent fact finder. And the political class was too cavalier about nullifying an election.

Whatever his wrongs, Blagojevich was right about this: The rules that removed him are not sufficiently distinguishable from a railroading, and they are wide open to abuse. We may find out, before long, that the door he was just shoved through swings both ways.

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"Tax Court Takes Swipe at Daschle-Geithner-Killefer-Solis":

Paul Caron (TaxProf) writes:

The Tax Court yesterday held that the IRS did not abuse its discretion in refusing to accept [blues singer Koko Taylor's] proposed offers in compromise, upheld the IRS's tax lien and levy against her, and upheld the the IRS's refusal to abate tax penalties. Taylor v. Commissioner, T.C. Memo. 2009-27 (Feb. 5, 2009). In its conclusion, the Tax Court appeared to take a swipe at Tom Daschle, Tim Keithner, Nancy Killefer, and Hilda Solis:

Both petitioner and respondent repeatedly commented on petitioner's stature as a beloved and well-known professional singer as support for their respective positions in these consolidated cases. We disagree with both parties insofar as they contend that a taxpayer's celebrity status is somehow relevant to what this Court must do in deciding whether the Commissioner's collection action may proceed. Every taxpayer, no matter how famous or notorious, has a legal obligation to honestly report and pay his or her income tax liability each year and is entitled to fair enforcement of Federal tax laws....

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Interview with Our Own Jonathan Adler,

on normblog.

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Justice Scalia Called a "Bully":

CBS News "Analyst" Andrew Cohen has called Justice Scalia a "bully" for offering strongly-worded views on legal subjects in this column. Cohen's views are absurd. There is a vast difference between strongly arguing one's case and "bullying" someone. In fact, it is Justice Scalia's well-known ability to offer lively, opinionated views on legal subjects is what makes him such a desirable speaker for many organizations.

Interestingly, the apparent flash point for Cohen's column is the fact that Justice Scalia opposes televising Supreme Court proceedings — something that CBS has a vested interest in securing.

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And While I'm Recommending Reading

Krauthammer is on fire today.


Truth on the Market:

Lots of good stuff over at Truth on the Market blog, especially about the "stimulus package" and its disingenuous advocates (one of whose initials is P.K.).

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The Meaning of Sarah Palin:

Via Instapundit, Yuval Levin has by far the best essay I've seen about Sarah Palin. It's too good to summarize, read the whole thing.

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Out-of-State Same-Sex Marriages Valid in New York for Employee Benefits Purposes:

So held a New York appeals court in Lewis v. N.Y. State Dep't of Civil Service a couple of weeks ago, for much the same reasons as were discussed here. Thanks to reader NabokovProdigy for the pointer to the decision, and to an article about the Alliance Defense Fund litigation strategy for challenging such recognition.

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Thursday, February 5, 2009

The Ninth Circuit and DOMA:

The indispensable Art Leonard has some thoughts on the potential significance of the internal grievance opinions that Eugene discussed earlier today.

All of this matters — beyond employees of the Ninth Circuit who entered same-sex marriages between June and November 2008 — mostly because the Ninth Circuit seems the most likely federal appeals court to decide a direct challenge to DOMA in the next few years. Judge Reinhardt's opinion isn't a shocker, but Judge Kozinski's is intriguing without committing him to anything. If the Ninth Circuit ruled against DOMA it would be difficult to see how it could do so without finding a right to same-sex marriage. And that would put the Supreme Court, which I think would like to avoid the issue for the foreseeable future, in a very difficult position. But that's still a few "ifs" down the road.

Related Posts (on one page):

  1. The Ninth Circuit and DOMA:
  2. Defense Of Marriage Act Unconstitutional
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"Prison Conditions My Domain":

Is it just me, or is the headline "War court judge: Prison conditions my domain" easy to parse incorrectly? (The headline has been changed to "War court judge: Prison camp conditions my domain"; but a Google search suggests that the original headline is indeed the one I originally quoted.)

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United Jewish Communities Lobbies for "Stimulus" Bill:

The UJC, the American Jewish community's umbrella charity, sort of a Jewish United Way, has generally steered clear in the past of taking positions on controversial economic policies. However, the UJC is now actively lobbying for the Democrats' atrocious "stimulus package."

Donors to UJC (I give a modest amount every year to the local Federation, which in turn sends "dues" to the UJC) who oppose the stimulus package should redirect their charitable giving accordingly, and let the UJC know why.

There are plenty of local Jewish charities that will take donations directly. And one very worthwhile Israel-related charity, which gets no money from the Israeli government, is Yad Sarah.


Harold Koh With the Wet Nose:

I say that apropos Orin's "Oops" post.

Related Posts (on one page):

  1. Harold Koh With the Wet Nose:
  2. Oops:
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Foreign Same-Sex Marriages and Distribution of Property on Death:

In re Estate of Ranftle, decided last week by the New York County Surrogate's Court, seems to me to reach exactly the right result. H. Kenneth Ranftle married J. Craig Leiby in Canada in June 2008. In November, he died, and was survived by Leiby and by three siblings.

The immediate question before the court was who was "entitled to receive process under SCPA 1403(1)(a), but since that refers to the "distributees" — those who would inherit under intestate succession — the procedural question included the substantive one: Should Leiby be treated as a surviving spouse? And this substantive question also applies to the more important situations where someone dies without a will, and the question is where the property goes (and not just who is notified about the probate when someone does have a will, as seemed to be the issue here). Yes, the court said:

Marriages valid where solemnized have long been recognized in New York; exceptions exist only for marriages affirmatively prohibited by New York law, or proscribed by "natural law" (Matter of May, 305 NY 486 [1953]). [Footnote: The "natural law" exception is generally limited to cases of incest and polygamy or where the marriage violates the state's public policy (Martinez v. County of Monroe, 50 AD3d at 191). It is noted that Governor David Paterson has instructed New York state agencies to recognize same-sex marriages that were valid where performed, through an Executive Directive dated May 14, 2008.] As decedent's marriage was valid under the laws of Canada, where performed, and falls into neither exception to the general rule, the marriage is entitled to recognition in New York (Martinez v. County of Monroe, 50 AD3d 189 [4th Dept 2008]) (recognizing Canadian same-sex marriage for purposes of entitlement to spousal health care benefits).

This strikes me as precisely correct. New York statutes do not bar recognition of out-of-state marriages. Neither do New York common-law principles; the "natural law" reference is indeed shorthand for "cases involving polygamy or incest in a degree regarded generally as within the prohibition of natural law." (By the way, Matter of May, which the court cites, upheld an uncle-niece marriage, which was valid under a Rhode Island statute that allowed such marriages for Jews; I expect that many people in 1953 thought such marriages to be inappropriate, and New York law in fact forbade them, but New York courts recognized the out-of-state marriage nonetheless.) The judge didn't have to do his own philosophical "natural law" reasoning to decide whether same-sex marriages are "natural" or "unnatural"; he was just reading the existing precedents no more broadly than they required.

And I think such a preference for recognizing foreign marriages that were legal in the place where they were entered into — a preference that is itself a long-standing legal principle — makes perfect sense, especially when it comes to intestate succession. Someone dies. He should have had a will, but he didn't, and it's too late for should-haves now. The legal system's goal should be to give the property to those to whom he would have most likely wanted to leave it, so long as this can be done without excessive fact-finding of the "Mother loved me best" variety. It's a fair bet that people would like to leave their property to their spouses; and that's true even if the law of the state wouldn't itself allow such a marriage.

You can like the marriage or dislike it, support uncles marrying nieces or oppose it, but when it comes to distributing the dead person's property, the focus should be (again, where it is consistent with the demands of clarity and minimal factfinding cost) on what the dead person would have wanted, not what the judge or the voters would have wanted. I'm not saying there's a constitutional obligation to do it — just that this is the soundest legal principle.

By the way, if you ask "But what about polygamy?," there's already an answer: In re Bir's Estate, in which the California Court of Appeal held — in 1948 — that California would recognize a foreign polygamous marriage (from India) for the purposes of intestate succession. Though California public policy might lead to a different result "if decedent had attempted to cohabit with his two wives in California" — remember that this was a time when cohabitation with someone who wasn't your legal wife could be criminal — "[w]here only the question of descent of property is involved, 'public policy' is not affected." Both wives were thus allowed to share equally in the decedent's property.

What's more, earlier cases took a similar view, especially as to the question whether the children of the second and later wives were to be treated as legitimate, back when more legal rules turned on legitimacy. These matter came up in some cases involving American Indian tribes, as well as marriages recognized in foreign countries. And the skies didn't fall, nor would they have, I think, if such cases had been more common.

UPDATE: I originally read the opinion as suggesting that Ranftle died intestate, because of the reference to the law of intestate succession at the end. But as a commenter pointed out, the opinion clearly says that Ranftle had a will. In any case, though, the significant legal consequence of this decision is that precisely the same reasoning would apply to intestate succession (where it would be considerably more important than for probate of a will). In any event, I've corrected the discussion of the facts -- my analysis of the law is the same as before.

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Jacob Sullum on the Stimulus Package: Read his critical take here at Reason Online:
This is the theory underlying the "stimulus" package: Since we can't depend on consumers to spend money they don't have on stuff they don't need, the government has to do it for them.
Thanks to Instapundit for the link.
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Crime Victim's Victory in the Sixth Circuit:

The Sixth Circuit has just handed a crime victim a notable victory in the Sixth Circuit in this interesting order.

The case involves a federal criminal prosecution in Columbus, Ohio, involving some sort of fraud. After the defendant entered a guilty plea, he moved to seal all of the pleadings and other information involved in the case. A person who apparently was victimized by the defendant's crime filed a motion to unseal the pleadings three months ago so that he could begin to exercise his rights under the Crime Victims' Rights Act. The district judge handling the matter did not act on the motion for three months, despite the CVRA's requirement that district judge's rule on CVRA motions "forthwith."

In its order just released, the Sixth Circuit granted a writ of mandamus directing the district judge to rule on the victim's motion to unseal within two weeks. A brief dissenting opinion by Judge Clay wonders why a two-week delay is even needed. He asserted that there was no legitimate basis for the sealing in the first place, as

all we have is the defendant's unsubstantiated and unsupported representation that he fears retaliation from anonymous, unidentified individuals with whom he might be incarcerated in prison in the future if the file is not sealed. That vague contention is hardly enough to overcome the public interest in not sealing the file, particularly when the person making the representaiton is someone totally lacking in credibility who is known to identify himself by multiple names. Furthermore, in view of the passage of time without a ruling by the district court on the motion to unseal, I am completely baffled by the majority's order to permit up to an additional two weeks to expeire before the district court is required to rule. The parties and the district court were afforded ample opportunity to provide any information bearing on this issue prior to this Court's ruling, and further delay in unsealing the file, which never should have been sealed in the first place, is entirely inappropriate and contrary to the purposes of the Crime Victims' Rights aAct and the Mandatory Victims' Restitution Act.

While I think Judge Clay is correct, I have little doubt that there will be an unsealing in two weeks.

One of the impressive things about the Sixth Circuit's ruling is that it took place within about 48 hours of the filing of the victim's petition. The petition, found here, makes a compelling case that the district judge has simply been ignoring the victim -- something that the CVRA obviously does not allow. (Full disclosure: I have been informally consulting with the victim's attorney.) The fact that the victim was able to swiftly and successfully obtain relief from an appellate court is an encouraging sign about the implementation of the CVRA.

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Oops: The Yale Daily News recently ran this correction, amending a story reporting that Yale Law Dean Harold Koh was being considered for a post at the State Department:
The story "Koh considered for State Department" stated that when reached by phone Wednesday evening and asked to confirm whether he was being considered for position of legal adviser to the Department of State, Yale Law School Dean Harold Hongju Koh repeated, "Is this done?" three times and hung up. In fact, when he answered the phone, Koh said he asked "Is this John?" — referring to Economics professor John Geanakoplos, a close personal friend with whom he had been speaking on the other line — and hung up when he realized it was not Geanakoplos.
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Amicus brief in Chicago handgun ban cases:

Just filed before the 7th Circuit Court of Appeals, an amicus brief on behalf of the International Law Enforcement Educators & Trainers Association, Independence Institute, The Heartland Institute, Prof. David Bordua, Prof. William Tonso, and the Law Enforcement Alliance of America.

This is a Brandeis Brief, providing social science evidence showing that guns in the hands of law-abiding people make a substantial contribution to public safety. The brief also explains why civilian handgun ownership helps so much with the training of new police officers. Finally, the brief provides data from Chicago showing that crime in Chicago (particularly, burglary and assault) sky-rocketed after the ban was enacted, and that the percentage of Chicago homicides committed with handguns has nearly doubled.

Because of the word limits in the 7th Circuit, this Brandeis brief is much shorter than the original Brandeis brief, which was 113 pages. But I'm proud that the 2009 brief upholds the freedom-loving spirit of Justice Brandeis, who stated: "We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force." [The Brandeis Guide to the Modern World, ed., Alfred Lief (Boston: Little, Brown & Co., 1941), p. 212.]

A comprehensive set of all the court documents in the Chicago handgun ban cases is available here.

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Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:

I blogged about this issue three weeks ago. Under 18 U.S.C. § 3142(c)(1)(B), someone who is charged with possessing child pornography -- among other crimes -- and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment.

A few weeks later I found another opinion, U.S. v. Kennedy (W.D. Wash.) (Donohue, M.J.), which holds the same thing (it was decided earlier than Arzberger, but placed online later). Here's the magistrate judge's reasoning, which the district judge (Richard A. Jones) approved without further analysis (paragraph break added):

Pretrial Services recommends that Defendant be prohibited from possessing a firearm, which is a mandatory condition under the Walsh Act. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created an individual right to possess firearms. In footnote 27, Justice Scalia noted that a law regulating a specific, enumerated right such as the right to keep and bear arms was subject to more than a rational basis level of scrutiny.

If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but merely because a person was charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms. Certainly no particularized need has been established in this case that the Defendant should prohibited from possessing a firearm. As such, they will restrict his freedom to such a substantial degree that they do nonetheless implicate a protected liberty interest, which may not be revoked without according Defendant procedural due process; specifically, an individualized determination as to whether the onerous mandatory conditions are needed to assure the Defendant's future appearance or to avoid a danger to the community. No such determination has occurred here.

Note that the magistrate's decision had a substantive effect, beyond just requiring the government to provide more evidence; the government apparently couldn't provide the evidence, so the defendant was released without the firearms restriction.

By the way, here is the government's argument for imposing the firearms restriction, and for reversing the magistrate's ruling:

[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms. Moreover, this condition will help ensure the safety of the community by restricting Defendant’s ability to harm himself or others by using a firearm....

[C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.

There's no explanation for why simply being charged takes away a defendant's Second Amendment rights. (Note also that Kennedy's crime -- possession of child pornography -- is not a "violent crime" under any normal understanding of the term, though it is a serious crime.) I also put up Kennedy's response to the motion, though it focuses on other matters.

Related Posts (on one page):

  1. Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:
  2. The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:
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Judicial Watch Sues Over Hillary Clinton and the Emoluments Clause:

This happened last week, but I was too swamped to blog about it. Here's the Complaint (in Rodearmel v. Clinton), and the press release:

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.

Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.

Specifically, article I, section 6 of the U.S. Constitution provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." The text of the provision is an absolute prohibition and does not allow for any exceptions.

According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.

Judicial Watch's lawsuit, however, points out that the legislation "does not and cannot change the historical fact that the 'compensation and other emoluments' of the office of the U.S. Secretary of State increased during Defendant Clinton's tenure in the U.S. Senate ...." The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit.

"This historic legal challenge should remind politicians of both parties that the U.S. Constitution is not to be trifled with," said Judicial Watch President Tom Fitton. "Mrs. Clinton is constitutionally ineligible to serve as the U.S. Secretary of State until at least 2013, when her second term in the U.S. Senate expires. We hope the courts will put a stop to these end runs around the Constitution and affirm the rule of law."

For our earlier posts on the subject, see here; as I noted there, I'm tentatively inclined to think that the Clinton appointment doesn't violate the Emoluments Clause, but I thought I'd link to the arguments of those who take the contrary view (as I also had earlier, quoting Prof. Michael Stokes Paulsen).

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Nat Hentoff Joins the Libertarian Cato Institute as a Senior Fellow:

Hentoff was let go by the Village Voice during its recent staff cuts. As the Cato press release report notes,

In 1980, [Hentoff] was awarded an American Bar Association Silver Gavel Award for his coverage of the law and criminal justice in his columns. In 1983, the American Library Association awarded him the Imroth Award for Intellectual Freedom. In 1995, he received the National Press Foundation Award for Distinguished Contributions to Journalism, and in 1999, he was a Pulitzer finalist for commentary. Hentoff has authored many books, including Living the Bill of Rights: How to be an Authentic American and Free Speech For Me But Not For Thee....

He serves on the Board of Advisors of the Foundation for Individual Rights in Education (F.I.R.E.) and is on the steering committee of the Reporters’ Committee for the Freedom of the Press.

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Defense Of Marriage Act Unconstitutional

when applied to exclude same-sex married couples from federal employee benefits: So concluded Ninth Circuit Judge Stephen Reinhardt earlier this week, in an internal order resolving a complaint brought by a Ninth Circuit employee. Chief Judge Alex Kozinski suggested in a similar order last month that DOMA might be unconstitutional in such situations, but interpreted the federal benefits statute in a way that avoided the need to decide whether DOMA is indeed unconstitutional. [UPDATE: These orders are not binding precedent, but they are a hint of how these judges -- and presumably some of their colleagues -- may rule in future cases arising outside this context of internal Ninth Circuit employment complaints.] (Thanks to Robert Iafolla and John Roemer of the L.A. Daily Journal for breaking the story.)

Judge Reinhardt concluded that applying the Defense of Marriage Act's mandate that "marriage" under federal law shall include only opposite-sex couples violates the Due Process Clause because it is not "rationally related to a legitimate governmental purpose." The opinion concluded that:

  1. The denial of benefits "cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right affored them by a state," since that would constitute "a bare desire to harm a politically unpopular group."

  2. The federal government interest in "defending and nurturing the institution of traditional, heterosexual marriage," mentioned in the House report on DOMA, "is largely irrelevant to the rational basis analysis here because the same-sex couple here is already married," and the government's denial of benefits to same-sex spouses wouldn't "encourage[ gay people] to enter into marriages with members of the opposite sex."

  3. As to the interest in "defending traditional notions of morality" also mentioned in that House report, "if the denial is designed to 'defend' traditional notions of morality by discouraging same-sex marriage, it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the 'bare desire to harm' same-sex couples that is prohibited under City of Cleburne and Romer." Moreover, "denying married same-sex spouses health coverage is far too attenuated a means of achieving the objective of 'defending traditional notions of morality," plus "Romer and Lawrence v. Texas strongly suggest that the government cannot justify discrimination against gay people or same-sex couples based on 'traditional notions of morality' alone."

  4. Finally, the third interest mentioned in the House report, "the government's interest in preserving scarce government interests" "does not provide a rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a prohibited or arbitrary ground."

Some of these rationales might be restrictable to employee benefits alone. But the logic of this argument, I think, would ultimately invalidate the entire Defense of Marriage Act, and for that matter would read the U.S. Constitution to secure a right to same-sex marriage (at least so long as the government recognizes opposite-sex marriages).

I like the idea of giving same-sex spouses the same health benefits as opposite-sex spouses; and I support same-sex marriage as a policy matter. But it seems to me that these claims that the law lacks a "rational basis" are not sound. The principle behind the Defense of Marriage Act — and nearly all states' recognition of opposite-sex marriage but not same-sex marriages — is that (1) heterosexual relationships are better for society than homosexual ones, and that the (2) government's preferring same-sex marriages in a wide range of contexts will tend to reinforce that norm among the public. I'm skeptical of both these claims, but I don't think they can be said to be irrational, or animated by a "bare desire to harm": Many critics of same-sex marriages genuinely believe (even if in my view ultimately wrongly) that specially fostering heterosexual relationships is indeed materially better for society than treating heterosexual and homosexual relationships equally — their desire is to try to help society (even if this in the process means excluding some groups for benefits), not "bare[ly]" "to harm" people.

And this is especially so since sexual behavior is indeed alterable for quite a few people. Whatever one might think about the alterability of sexual orientation, there is strong evidence that many (perhaps about half) non-purely-heterosexual men and most non-purely-heterosexual women are actually bisexual, and may thus be not unlikely to respond to social norms in their choices of partners. As I've suggested before, I don't think we should try to pressure this choice using government benefits; but that doesn't make the contrary view irrational, it seems to me. Moreover, while I am told that there is a considerable amount of intriguing evidence about sexual orientation being innate, I'm pretty skeptical that the matter is conclusively resolved at this stage of the investigation. I thus don't think it's irrational for Congress to believe that, at least as to some people, broad social norms may affect their felt orientations and not just their choices within a felt bisexual orientation.

Of course, any particular application of the law (e.g., to employee benefits) might not have that much of a norm-reinforcing effect. But that sort of particularization isn't the proper approach under the rational basis test, I think, nor should it be: The point of this law, as of many other laws, is to have a significant effect through its aggregate incentive and norm-setting function.

Finally, I should acknowledge that the famously mysterious decision in Romer v. Evans, and the less famously mysterious but still, in my view, not well-reasoned decision in City of Cleburne v. Cleburne Living Center might be read as supporting the conclusion that DOMA is unconstitutional here. This is so precisely because they are so vague, and because the "rational basis with bite" review that they are said to create is so unclear on what that "bite" is supposed to mean, and what actual legal rule judges are supposed to use to implement this "bite." But I'm pretty sure that those decisions don't mandate the results (again, precisely because they are so vague).

In any case, let me stress again: I think wise employers, federal, state, and private, should care about keeping their employees happy and productive — including by helping the employees' provide for their families — and not about the employees' choice of spouses or life partners. I also support the recognition of same-sex marriages. But while I think the views contrary to mine are mistaken, I don't think they're irrational, either in the lay sense or in the constitutional sense.

Related Posts (on one page):

  1. The Ninth Circuit and DOMA:
  2. Defense Of Marriage Act Unconstitutional
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Hurray for President Obama!

The White House affirms that he will end the Bush/Clinton policy of raiding medical marijuana providers who are operating within the parameters of state law. A victory for patients, for the Tenth Amendment, and for responsible use of federal law enforcement resources, as Mike Krause and I argued in 2001.

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Wishing Justice Ginsburg a Speedy Recovery: The AP is reporting that Justice Ginsburg had surgery today for pancreatic cancer:
  Supreme Court Justice Ruth Bader Ginsburg has undergone surgery for pancreatic cancer, apparently at an early stage.
  The court said the 75-year-old Ginsburg had the surgery Thursday at the Memorial Sloan-Kettering Cancer Center in New York.
I'm very glad it was caught an an early stage, apparently after a routine exam. (Read more details on that in the story -- click on the link to see them.) Best wishes for a speedy recovery. Thanks to David Chesler for the heads-up.
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More on Is Poker a Game of "Chance"?

A VC reader has forwarded to me this very interesting amicus brief filed by the Poker Players Alliance in a Kentucky case. The brief is filed "in support of every person's right to legally play poker, both on the internet and in person."

The crux of the argument is that the wagers in poker involve a great deal of skill:

While the initial distribution of cards and replacement cards are random, the decision on which cards to discard, the methods and steps in wagering, whether to wager or fold, the analysis of playing habits of other players, and the management of a player's chips from hand to hard are all player-based decisions greatly influenced by the skill levels of the player.

The brief goes on to discuss Kentucky law, under which "gambling" activities are proscribed. Kentucky Rev. Stat. Ann. section 528.010(1) defines "gambling" as:

staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling.

The amicus brief contends that poker does not fit the definition of gambling because "the outcome is based primarily on the skilled play of the players." The brief explains that most poker hands "are decided by all players folding to the winner. In that case the actual distribution of the cards (the element of chance) has no bearing on deciding who won. Instead it was the players' analysis as to the relative value of their cards and their opponetns cards that determined the outcome, which is based on the myriad of skill elements" such as assessing risk, players' strategies, etc.

The brief goes on to explain that Kentucky law as followed a "predominance" test to determine whether a game is one of skill or chance with regard to the gambling proscription. The Kentucky Attorney General has determined that table soccer, for example, is a game of skill — citing the presence of organized tournaments, regulations, and classifications of players. The brief goes on to offer various reasons for believing that skill predominates over luck in poker.

The whole brief is an interesting read. If the test under Kentucky law is truly a predominance test, I think the brief makes a compelling case that poker is not gambling. For example, it cites a study comparing an unskilled player making wagering decisions randomly against a skilled player in a two-player limit game of Texas Hold 'Em. The skilled player apparently wins 97% of the hand and an average of more than one-and-a-half "big" bets. Anthony Cabot and Robert Hannum, Toward Legalization of Poker: A Game of Skill, presented at the Drake Gaming Law Symposium, Sept. 12, 2008.

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Car Dealer Franchise Laws:

One major problem currently faced by automakers is that they are stuck in economically irrational permanent contracts with franchised auto dealers. These arrangements were not created by bargaining, but by legislative fiat. My father Jerry Kopel explains the problem in Colorado, and a new bill which would make the problem even worse. The column originally ran in the Colorado Statesman, Colorado's weekly political newspaper.

My father served 22 years in the Colorado House of Representatives, representing northeast Denver. One of the most liberal members of the legislature, he was (and is) a strong champion of consumer rights. Among other things, he was the lead sponsor of Colorado's adoption of the Uniform Consumer Credit Code. As a consumer advocate, he observed how professional licensing is frequently used as a tool to exclude competition, rather than to guarantee professional quality. Accordingly, he sponsored the first Sunset law in the nation, requiring that professional licensing boards automatically expire after a period of years, unless they are renewed by an affirmative act of the legislature.

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Some Data on Law School Applicants and Matriculants:

For applicants to law school for Fall 2007, the average "Caucasian/White" applicant to law school had an LSAT score of 154.9, and an undergraduate GPA of 3.32. The average "Black/African American" applicant had a LSAT score of 143.7 and an undergraduate GPA of 2.96. The standard deviation for LSAT scores is 9.97.

For law school matriculants in Fall 2007, the averages were 158/3.40 for whites, and 150/3.16 for African Americans.

Asian Americans had very similar scores to whites, on average, and Hispanics' scores were very close to midpoint between the scores of whites/Asians and African Americans.

What's the point? For this post, I don't have a specific point. I think it's obvious that one could use this data, if one were so inclined, to argue that law school affirmative action that insists on something approaching proportional representation in each law school for different ethnic groups is doomed to fail, and one could also use this data, if one were so inclined, to argue that law school affirmative action is absolutely necessary.

But the debates one hears and reads over these issues often seem to me to occur in a data vacuum, so I thought it was a contribution just to provide it.

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Wednesday, February 4, 2009

CQ's Legal Beat:

Congressional Quarterly (aka CQ) has a new blog focusing Congress and the courts, "Legal Beat." Among its initial posts are one on Senator Specter's call for "bipartisanship" in judicial nominations and another on Senate Judiciary Committee Chairman Senator Leahy and "Blue Slips."

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Unpolitical Science:

The LA Times reports on an interview with Energy Secretary Steven Chu, a Nobel-winning physicist, about the threat climate change poses to California.

Reporting from Washington -- California's farms and vineyards could vanish by the end of the century, and its major cities could be in jeopardy, if Americans do not act to slow the advance of global warming, Secretary of Energy Steven Chu said Tuesday. . . .

"I don't think the American public has gripped in its gut what could happen," he said. "We're looking at a scenario where there's no more agriculture in California." And, he added, "I don't actually see how they can keep their cities going" either.

These are fairly apocalyptic predictions. The problem, as Roger Pielke Jr. notes at Prometheus, is that Chu's claims are not supported by available climate science. There are plenty of studies identifying potential negative impacts in California from climate change, such as this one linked by Sean Hecht at Environmental & Law, yet I am not aware of any that could support the claim that climate change threatens to end all agriculture in California.

For years we've heard complaints about how the Bush Administration waged a "war on science" by, among other things, distorting or misrepresenting scientific findings in order to support its policy positions. If the LA Times accurately reported on Chu's remarks, it seems like Obama Administration officials are already doing the same thing (and even before John Holdren is confirmed).

Related Posts (on one page):

  1. Unpolitical Science:
  2. The Holdren Pick:
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Still More on the Consumer Credit Substitution Effect:

I have previously written on how the growth of credit card lending came about as a substitution from other less-attractive types of consumer lending. And how the current credit crunch has resulted in a sort of reversal of history, as middle-class families who are suddenly unable to get credit card and other similar loans increasingly have been resorting to alternative types of credit, such as layaway and pawn shops.

Now comes the inevitable next shoe to drop--the increasing use of payday lending by middle class consumers who have found their credit lines reduced on credit cards or otherwise unable to get access to credit, especially for urgent expenses like car repairs or to avoid bounced-check fees:

Payday loans typically a way working-class people get cash in a pinch, are increasingly being sought by middle-income families living without a cash cushion.

Lenders and others say the short-term loans are being taken out by people who used to get needed cash from a bank, a credit union or a credit card. With the recent credit crunch and recession, high-interest payday loans have become an alternative.

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Paying Loan Servicers to Modify Loans.

That is the proposal of Christopher Mayer, Edward Morrison, and Tomasz Piskorski, contained in this paper, which has received attention from Congress. The proposal addresses one of the major difficulties posed by the current financial/economic crisis: millions of homeowners with negative equity have a strong incentive to walk away from their homes, leading to foreclosure, which predictably reduces the value of the homes by as much as fifty percent. In the old days, the bank and the homeowner would renegotiate the loans because the bank does better if the homeowner pays off a smaller debt based on something above the foreclosure value, and the homeowner does better if he or she pays less than the payments under the original loan agreement (through lower interest payments, or deferral of payments, or whatever). Today, loan servicers act as agents for thousands of mortgage-backed security holders, who have conflicting interests to the extent that their claims have different levels of seniority. Some readers of my earlier post disputed these assumptions, but the Mayer et al. paper cites the latest academic literature that confirms them.

According to Mayer et al., loan servicers have weak incentives to renegotiate the loans. A loan modification costs between $750 and $1000. Foreclosure costs the loan servicer nothing; it is reimbursed for foreclosure-related expenses under the contract. However, the servicer does continue to receive its fee (typically, 0.25 percent of the balance per year) if it can maintain or renegotiate the loan. A numerical example shows that under (presumably) reasonable assumptions, servicers will often foreclose rather than renegotiate even though renegotiation is in the bondholders’ interests. Because they are numerous and dispersed, bondholders cannot, as a practical matter, renegotiate with the loan servicer and pay it to renegotiate when it would otherwise prefer not to.

The proposal has two parts. Like other proposals, including bills in Congress, Mayer et al. would give loan servicers a good-faith defense against suits brought by bondholders. The more distinctive part of the proposal is the use of TARP money to compensate loan servicers for the cost of renegotiation. The government would pay loan servicers an amount equal to ten percent of mortgage payments up to $60 per month, plus an additional amount if the borrower prepays. Only certain types of loans would qualify: privately securitized non-jumbo mortgages. The fees on jumbo mortgages are high enough to compensate servicers for the costs and risks of loan modification.

The proposal can be contrasted with the FDIC proposal, under which the government pays servicers $1,000 for a loan modification that survives for at least six months, and shares fifty percent of the loss if default occurs. The main difference between the two proposals is that the FDIC proposes a flat fee with some protection on the downside, while Mayer et al. give the servicer a share of the upside. That helps align the servicer’s incentives with the bondholders’ interests. If the bondholders gain, the servicer gains. By contrast, under the FDIC plan, the servicer could in principle gain by agreeing to loan modifications that ultimately fail. Mayer et al. also argue that their proposal is superior to bankruptcy strip-down proposals, which would lead to endless litigation rather than a quick end to the housing/financial/economic crisis.

A few concerns about the Mayer et al. proposal (and readers are invited to give their reactions as well):

1. If it has ex ante effects (that is, creditors expect that in any future financial crisis, the government will do the same), then it will help reinflate a credit and housing bubble. Loan servicers, creditors, and homeowners can divide ex ante the future government bounty. By contrast, loan moratoria, Chapter 13 reform, and the like, should reduce the incentive to extend credit (for better or worse). Think of the way agricultural subsidies are capitalized into the cost of farmland: there is a one-time transfer of wealth, and then a permanent surplus of crops which are pure waste.

2. Mayer et al. criticize the bankruptcy reform proposals for being crude, but their approach is crude as well. Why ten percent capped at $60 per month? Why not lower or higher? The proposal rests on pretty aggressive empirical assumptions about such things as the risk aversion of loan servicers and the likelihood that beneficiaries of renegotiated loans will default. And then there is the question of whether the estimated $10 billion in TARP funds have a better use.

3. Servicers will have an incentive to renegotiate loans even in cases where the homeowner should lose the house. In some places, the foreclosure value of the house will not necessarily be much lower than the market value—for example, in healthy neighborhoods where a homeowner defaults not because housing prices have plummeted but because the homeowner suffers a permanent loss in income. Here, the house should be foreclosed and resold. Instead, the servicer will renegotiate the loan down to a level the homeowner can afford, thanks to the subsidy from the taxpayer. The proposal makes a fetish of foreclosure: we don’t want to avoid all foreclosures; we want to reduce the incidence of inefficient foreclosure that results in the loss of home value.

4. Servicers will have an incentive to renegotiate loans even in cases where the homeowner would be able to avoid default without a loan renegotiation. Consider people with low or even negative equity who nonetheless want to stay where they are and possess the wherewithal to make loan payments. The loan servicer would be willing offer the homeowner better terms in return for a loan renegotiation that would enable the loan servicer to claim TARP funds. Perhaps, this behavior would be considered bad faith, creating a risk of litigation by MBS holders. But the loan servicer might be able to avoid the litigation by adjusting the loan only minimally—it would still be entitled to the TARP funds and the MBS holders might think that the cost of litigation exceeds the gain from any remedy.

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Attacks on David Ogden: In the last few days, a number of conservative groups have tried to rally opposition to David Ogden, President Obama's nominee for Deputy Attorney General. In my view, their arguments are simply terrible. For example, at Heritage, Steven Groves notes that in successfully defending an inmate on death row before the U.S. Supreme Court, Ogden argued that the Supreme Court should look to foreign law to interpret the Constitution. Well, of course he made that argument: He had an ethical duty of zealous advocacy on his client's behalf, and he properly made the argument that he thought had the best chance of winning. (Can you imagine a lawyer representing a client on death row and opting not to make an argument that would win and save his client's life?!?) I personally don't think the Supreme Court should have agreed with Ogden's position. But that's my problem with the Court, not the lawyer representing his client.

  UPDATE: In the comment thread, Steven Groves responds:
My argument was not that Mr. Ogden shouldn't zealously represent his client, but rather that the Senate should probe his beliefs regarding constitutional interpretation vis-a-vis foreign jurisprudence. I thought that was clear from the paper.
  I appreciate the clarification. I wonder, though, why probe Ogden's views of the issue, as opposed to the views of other nominees? The Deputy AG isn't generally in a position to engage in a lot of constitutional theorizing. And as far as I know, this isn't a question that other DOJ nominees have been asked. (Anyone know if it came up at Holder's hearings?) Perhaps Groves would want the beliefs of every DOJ nominee probed on this issue, and he is picking out Ogden simply because by coincidence Ogden happens to have represented a client in case where the issue came up. That's certainly possible. On the other hand, my sense is that urging the Senate to "probe his beliefs" is likely to be understood not just as suggesting a line of questions generally, but more specifically as suggesting this issue as a possible objection to Ogden's confirmation.
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Is a Three Year Delay in Sentencing Too Long?

According to this interesting article, a federal judge has recently set the sentencing date for four plant managers convicted of environmental and safety crimes on April 26, 2006. The sentencings are now set for April 24, 2009 — nearly three years later.

It is not clear what has caused the delay. Federal prosecutors filed a motion in December to speed things up. They argued that the sentencing delay affected public perception of justice. They also cited the Crime Victims' Rights Act, which promises crime victims that they have a right to a trial "free from unreasonable delay." The case involves a forklift accident at a foundry that killed a plant worker.

It's hard for me to imagine what could reasonably cause a three-year delay in sentencing.

Update: Here is a copy of the Government's "Motion to Set a Sentencing Date Pursuant to the Crime Victims' Rights Act." The Government's claim:

More than two and one-half years have now elapsed since the jury in this case convicted these Defendants of multiple, serious crimes. Several of those offenses related to Defendants’ systematic deception and obstruction of OSHA after Atlantic States employees were killed or maimed at the facility. Among the many concerns the Government has regarding delay of sentencing – including loss of trial participants, public perception, and absence of witnesses in the event of retrial – is the right of crime victims to proceedings free from unreasonable delay as mandated by the Crime Victims’Rights Act. See 18 U.S.C. § 3771(a)(7). It is clear from the Act that its terms apply during the sentencing phase of the court proceedings. See, e.g., 18 U.S.C. § 3771(a)(4). Pursuant to 18 U.S.C. § 3771(d)(1), the Government may assert the rights set forth under 18 U.S.C. § 3771(a), including the right to proceedings free from unreasonable delay. The district court shall take up and decide such motion forthwith. 18 U.S.C. § 3771(d)(3).

Based on the delay, the Government asked for a sentencing date to be set "promptly."

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One More Question About Speculation:

Say you're a mayor, and you're trying to decide whether to get smart guns for your city's police force. (Assume again that such guns do become at least as reliable as purely mechanical guns.)

There's an upside to such a decision: About 10 percent of all police officer shootings happen with the officer’s own weapon (according to 1990s data). Sometimes the shooter might have his own weapon and might use the officer’s weapon just to make tracing harder; but sometimes the shooter starts out unarmed and seizes the gun from the officer in a struggle. If the officer has a personalized gun, the officer’s life could be saved.

But there's also a downside, and part of the downside is EMP risk: The last thing you want is for your police force to be entirely unarmed in case of an EMP attack and its aftermath. Do you take steps to try to protect against such risk, for instance by insisting that you only get smart guns if they operate in "work mechanically if the electronics fails" mode, or if they can be "dumbed down" using some simple mechanical toolkit that all officers in the field will have on them? Do you make sure that each police car has a mechanically locked purely mechanical gun just in case? (You can't just store such guns at the station, I think, given that officers may be stranded far from the station.) Do you do this even if the steps involve some modest expense, or some modest delay in getting the personalized gun?

Or do you not focus on the risk, because it's too speculative? If the answer is that such speculative risks should be ignored, would you likewise ignore the risk if you're deciding whether to spend city funds to harden some local infrastructure against EMP?

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Speculation and Policy Decisions:

I much appreciate the comments in the Electromagnetic Pulse and Smart Guns thread, and I wanted to follow up on one question.

Some commenters -- and others I've talked about this subject -- suggested that it's not sound to make policy decisions based on this sort of speculation about the possibility of an EMP attack. (I set aside for purposes of this post whether one ought to speculate about the availability of smart guns; let's assume that smart guns become available and reliable, as the New Jersey conditional smart gun mandate law presupposes they will be. I also set aside whether smart gun mandates are prohibited by the Constitution even if it turns out they don't materially interfere with people's ability to keep and bear arms for self-defense; that will be the focus of more posts in a few weeks.)

Let me probe this speculation issue a little. The existence of EMP is not speculation: EMP, unlike sex-starved velociraptors, is quite real, as are nuclear bombs, as is EMP that goes much further than the bomb's kill radius. The speculation comes in guessing about the per-year probability that America would be subject to an EMP-generating (but not otherwise immediately lethal) nuclear attack.

But is such speculation really improper -- or even reasonably unavoidable -- when it comes to policy analysis? Imagine that there's a proposal to spend tax money to shield American infrastructure installations against EMP. I assume we wouldn't condemn it as inherently unsound because it's built on speculation about the likelihood of an EMP attack. Of course we could always debate whether it's worth spending the particular amount of money that's proposed, given other possible uses for the money (including lowering taxes as a possible use). But to resolve that debate, either in favor of spending on EMP shielding or against it, we'd have to speculate about the risk of an EMP attack.

Is there some inherent reason that such speculation is (1) proper for evaluating the merits of spending programs, but (2) not proper when evaluating the constitutionality of regulatory programs (in the course of determining whether the programs excessively burden the exercise of constitutional rights)?

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Daschle's Out:

I was surprised to wake up this morning and find out that (a) Tom Daschle had withdrawn his candidacy to be Sec'y of HHS, and (b) the story was reported in the Washington Post but not yet up here on the VC!! In any event, he is gone -- and I think Obama made the right call jettisoning his candidacy ("Did I screw up in this situation? Absolutely" he told Brian Williams of NBC yesterday). It wasn't just the taxes -- it was the fact that Daschle, who moved into an insanely high-paying lobbying job right out of the Senate, was just the sort of guy Obama promised to rid us of, and I'm not at all sorry to see him disappear from the scene. DGP

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Tuesday, February 3, 2009

DHS and OT09: David Lat notes at ATL that, as far as he knows, Justice Souter has not yet hired anyone for clerkship positions in his chambers that will begin this summer. As David notes, Justice Souter traditionally hires last, so this isn't necessarily a sign that he doesn't plan to hire anyone (which presumably would suggest a plan to retire). Still, it's at least a possibility. If any readers know if Justice Souter has been doing any interviews in the last few months, please consider e-mailing me at okerr [at] gwu.edu. Thanks.

Electromagnetic Pulse and Smart Guns:

I blogged about this nearly six years ago, but I thought I'd mention it again, especially since I have to decide whether to mention this in my forthcoming article on how courts should implement the right to bear arms. I'd love to hear what people thought about this subject more generally, but in particular it would be useful for me to know: Do you think that a law review article section on the right to bear arms and "smart guns" mandates should mention these risks? Or are they the sorts of risks that are too low or too uncertain to consider in such analyses?

Assume that smart gun technology does really develop to the point where, setting aside the risk of electromagnetic pulse, a smart gun is roughly as reliable and as costly as a comparable purely mechanical gun. Also, let's focus solely on the right to keep and bear arms in self-defense, and set aside the right to keep and bear arms as a possible deterrence to government tyranny; to make my article manageable, I am focusing solely on the self-defense side (and even so I'm at over 80 pages).

In any case, here's the issue:

1. A high-altitude nuclear detonation can generate an electromagnetic pulse that will basically destroy unshielded electronic circuitry in line of sight — potentially over hundreds of thousands of square miles. There has also been talk of e-bombs, which are nonnuclear devices that could create an EMP over a much smaller area.

This, it turns out, is one of the little-known twists in the debate about "smart guns." Smart guns, in theory, would only be usable by their authorized owner. This would be done using some technology, likely chip-driven technology — possibly some radio transponder that reacts to a special ring that the owner wears, or possibly even fingerprint recognition (though that would have been mighty quick and reliable).

I don't support laws that mandate smart guns, chiefly because there's no reason to think that such guns will be reliable enough any time soon. But I certainly see the advantage of such guns, as a means of preventing the 100 or so fatal gun accidents and the greater number of nonfatal gun accidents involving kids that happen each year in the U.S.

If I had a child, and smart guns were reliable enough, I might well be willing to spend some extra money to get a smart gun instead of my current dumb guns. And if (as I asked you to assume) such smart guns became generally about as reliable and about as costly as ordinary guns, I think smart gun mandates might well be constitutional under the theory that they do not materially interfere with the right to keep and bear arms in self-defense. I'll have more to say with this sort of "substantial burden" inquiry when I blog about my article, but right now I'm too busy writing it to blog more extensively about it.

But the concern about electromagnetic pulses puts a different cast on things. Naturally, I don't expect an e-bomb being set off in L.A. any time soon; but I also don't expect a fatal gun accident in my house any time soon, since those are rare events, too. But I do know that there's a nontrivial chance that in my lifetime, there will be some terrorist or military attack on the place that I live. When that happens, there might well be serious social disruption caused by the attack, and extra need for me to be able to protect myself and my family. It would be just the wrong time to be armed with something that used to be a gun but that's now just an expensive lump of metal.

Naturally, this is just one cost that one has to consider — both in one's personal buying decisions and in deciding what the constitutional rule ought to be — and as I mentioned the benefits of smart guns, if they become highly reliable, are nontrivial. Moreover, the cost might be minimizable, for instance if the guns end up being properly shielded (though I understand that creating such shielding is not easy, which is one reason that e-bombs are potentially powerful weapons), or if the guns are set up so that when the "smart" technology fails, the result is a working dumb gun rather than an inoperable one.

But I don't think that we can just ignore this cost. We've generally lived our lives in environments of peace and civil order, but there's no guarantee that this will continue; in fact, judging by recent human history, there's reason to think that there's a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down. And when that happens, we'll both be in special need of personal defense weapons, and in special need of personal defense weapons that haven't had their innards fried to a crisp.

2. When I blogged about this, Matthew Yglesias responded:

So let me ask again: Should considerations of such extraordinary threats, of an uncertain magnitude, be part of the policy analysis when it comes to smart gun mandates? Of the constitutional analysis?

Related Posts (on one page):

  1. One More Question About Speculation:
  2. Speculation and Policy Decisions:
  3. Electromagnetic Pulse and Smart Guns:
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The Journal of Legal Analysis.

The first issue of the Journal of Legal Analysis has appeared. Several features should be noted:

1. It is faculty edited and peer reviewed.

2. It publishes “scholarship from all disciplinary perspectives and in all styles, whether verbal, formal, or empirical.” This aspiration is confirmed by the selection of papers in the first issue.

3. It is free and online, and the articles appear on the web as they emerge from the editing process, rather than all at once. (A paper issue is also published.)

The Journal of Legal Analysis is not the first peer-reviewed journal for legal scholarship (there must be around a dozen), but it is the first that is not specialized by methodology or subject matter, and so it may offer some competition to law reviews. And a good thing! Law reviews have their place but peer review screens bad papers and contributes greatly to the quality of good papers, and faculty-edited journals don’t demand excessive citation, unnecessary parenthetical-making, and the other forms of time wastage in which the law review system delights. May JLA prosper and spawn many imitators.

You may submit your papers here.

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All Over $947:

TaxProf summarizes the Nancy Killefer matter thus (linking to various news stories):

Nancy Killefer, President Obama's selection to be the federal government's inaugural Chief Performance Officer, withdrew her candidacy after press reports surfaced that the D.C. government had slapped a $946.69 lien on her home for nonpayment of $298 of employment taxes (plus $48.49 of interest and $600 in penalties) on her two nannies and personal assistant over an 18-month period.

What next — people being pressured to withdraw from possible government appointments because of overdue parking tickets? It sounds like Ms. Killefer erred in the way lots of people err. I very much doubt that she was deliberately trying to cheat the government out of $298. Rather, she screwed up in having to deal with one of the many small tax and regulatory matters with which the government has burdened the public.

The legal system has a means of dealing with these errors, much as it has a means of dealing with overdue parking tickets: Modest financial penalties. The modest size of the penalty, coupled with its only being a financial penalty, reflects the modest magnitude of the misbehavior — it's a simple error that has to be remedied, not a deliberate fraud that merits serious punishment or deep moral condemnation.

Is this really the way we can get the best people for government jobs? Is it even the way that we can best insist on ethical behavior?

(Disclosure: I've screwed up things like filing my estimated tax payments, and have been assessed penalties that are slightly higher than Ms. Killefer's, though that were still quite modest. It has never gotten to liens, but maybe D.C. is just more lien-happy than the IRS.)

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Well, Someone Has To Warn Us About the Zombie Menace:

Hacking electronic road signs.

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Assessing the Universal Declaration of Human Rights:

Last December was the 60th anniversary of the enactment of the Universal Declaration on Human Rights. Nobel Prize-winning economist Amartya Sen has an article in The New Republic claiming that the Declaration was a major advance in the protection of human rights. I'm a big fan of Sen's work, even though I often disagree with him. In this case, however, most of his arguments seem unpersuasive.

A striking omission in the article is Sen's failure to identify even one country or region where the Declaration has led to increased protection for human rights or to some other form of tangible progress. If, as Sen claims, the Declaration really has "played an indisputably significant and astonishingly constructive role" in advancing the cause of human rights, we should be able to cite at least one case where it has led to major progress that would not have occurred otherwise.

Sen does claim that the Declaration facilitated progress in four different ways, at least three of which don't withstand close scrutiny.

I. Does the Universal Declaration Place Human Rights Above Legislation?

Sen argues that the Declaration was important because it "took the firm view that human rights do not depend on legislation for recognition. People have these rights simply by virtue of being human." Sen hails the Declaration's apparent conclusion that human rights transcend legislative enactments. But, as Sen himself acknowledges, this was hardly a new idea, since it had already been embodied in the US Declaration of Independence and in the liberal natural rights tradition more generally. Moreover, the text of the UDHR actually defends sweeping legislative constraints on the supposedly "universal" rights it purports to defend. Article 29 of the Declaration emphasizes that "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." Almost any restriction on freedom "determined by law" can be defended on the grounds that it is needed to promote "morality," "public order," or "general welfare." Worse still, Article 29 also notes that "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations." Far from placing human rights above legislation, the Declaration makes them subject to the "purposes and principles" of an undemocratic transnational legislative body where oppressive dictatorships are heavily represented. From a natural rights standpoint,this is a retrogression relative to traditional majoritarian democracy, not an improvement. The issue is of more than just legalistic importance in light of recent UN initiatives such as the ongoing attempt to ban "defamation of religion." If the UN decides that this new norm is one of its "purposes" or "principles," the UDHR will not only permit governments to censor speech that violates it but may actually require them to do so.

II. Does the Universal Declaration Promote the Protection of Human Rights by Nonlegislative Means?

Sen's "second intellectual innovation of the Universal Declaration concerns the instruments that can be used to pursue the ethics of human rights." He claims that the Declaration for the first time allowed for the protection of rights through nonlegislative action, such as advocacy in civil society. However, nonlegislative human rights advocacy long predates the Declaration. Consider, for example, the nineteenth century antislavery movement, which made extensive use of the kind of "public discussion, social monitoring, investigative reporting, and the functioning of the media as a forum for news and comments" that Sen claims was an "intellectual innovation" of the Declaration.

Moreover, as noted above, Article 29 of the Universal Declaration gives repressive governments a wide range of rationales for suppressing individual freedom and those civil society organizations that dare to criticize their human rights records. For example, if governments decide that such organizations are inimical to "morality, public order [or] the general welfare," Article 29 justifies their suppression. And if they undercut the "purposes and principles of the United Nations," such suppression is not only permitted but arguably required.

I don't mean to suggest that the Universal Declaration actually leads to a net increase in repression. Most dictatorships would probably repress even without it. However, its provisions certainly don't alleviate it.

III. "Universality" and the Dirty Hands of the Declaration's Drafters.

Sen also argues that the Declaration was an advance over previous human rights law because of its supposedly greater universality:

[Another] remarkable feature of the Universal Declaration is its universal coverage: it applies to everyone in the world, without exception. This was a serious issue in the interpretation of rights following the American Declaration of Independence, since independence was fought and won on behalf of all even as the application of many of the rights remained for a long time confined to white people. Indeed, it is the non-inclusive character of the American Revolution that led Mary Wollstonecraft, the radical thinker, to make an enigmatic remark about Edmund Burke, who supported the American Revolution: "On what principle Mr. Burke could defend American independence, I cannot conceive." What could the revolutionary Wollstonecraft have meant in criticizing Burke, in many ways the father of British conservatism, for his support for the American Revolution? She was of course talking about the dubious viability of a human right from which an entire American population, the population of slaves, was excluded. The U.N. Declaration speaks up powerfully against any kind of double standard, and it is in many ways the watershed event in the recognition that universal coverage is essential for global ethics in the contemporary world.

Sen is certainly right to criticize the American Founders for failing to live up to their own principles, especially with respect to slavery. But it's hard to understand why he thinks the Universal Declaration is an improvement in this regard. After all, the Declaration was enacted in 1948, and its content heavily influenced by Stalin's Soviet Union and its allies. Stalin, of course, was one of the greatest mass murderers in world history, and his regime was guilty of many other human rights violations as well, including extensive use of slave labor on a much larger scale than in the Founding-era US. The Stalin-era Soviet Union also deported and partially exterminated numerous ethnic groups, such as the Crimean Tatars. The non-communist governments that helped produce the Universal Declaration were not nearly as egregious as their communist coauthors. But most of them - including a still-segregationist US - were hardly paragons of virtue either.

The fact that Stalin's minions played a major role in drafting the Declaration does not in and of itself prove that it is a bad document. Even the most evil regimes can occasionally do good. However, the nature of the Soviet regime is definitely relevant by Sen's implicit standards for judging human rights documents, which devalues the American Declaration of Independence because of the wrongs committed by its framers. Moreover, the USSR really did influence the content of the final draft for the worse. As John McGinnis and I discuss in this article (pg. 28), the Soviets prevented the inclusion of protection for the right to form political parties in order to legitimize their own one-party state, watered down protection for private property rights, and - most importantly - facilitated the inclusion of a "right" to suppress speech that constitutes "incitement" to "discrimination" (Article 7 of the Declaration). The latter has become a rationale for numerous proposals for censorship, including the movement to ban "defamation of religion" discussed above. As co-conspirator Eugene Volokh has often pointed out, Article 7 and other similar international law "hate speech" norms are a potentially serious threat to civil liberties.

If the universality of the Declaration of Independence is undercut by the moral failings of its authors, the same point applies with vastly greater force to the Universal Declaration.

Perhaps Sen merely means to say that the Universal Declaration was an advance because it is universalist in its wording, regardless of the intentions of its drafters. However, the same can be said for the Declaration of Independence and Constitution, which also make no explicit racial, religious, or ethnic distinctions.

Finally, Sen argues that the Universal Declaration represents an important advance over previous human rights documents because it incorporates "positive" socioeconomic rights such as the right to employment and state-provided welfare programs. I'm not going to give a complete rebuttal to this argument here. To do so would require recapitulating the entire longstanding debate between free market advocates and their opponents. Here, I will only note that the case for these rights is not nearly as open and shut as Sen suggests. To the extent that the inclusion of positive rights in the Declaration serves to legitimate government control of health care, welfare, and education, it might actually reduce the quality of their provision, for reasons that I elaborated in my recent post on the dangers of expanding government power. Nevertheless, I'm actually less critical of Sen on this point than on the others. The Declaration's positive rights provisions are vaguely enough worded that they need not necessarily be interpreted to mandate provision of these rights by the government, as opposed to free markets and civil society. Moreover, I am not as categorical as some of my fellow libertarians in opposing all state-imposed redistribution to the poor. At least in principle, I think that some redistribution to those genuinely unable to provide for themselves is defensible.

My overall verdict on the Universal Declaration is far more negative than Sen's. Some of the rights enumerated in the Declaration are eminently defensible, such as the right of freedom of association. These, however, are offset by the Declaration's more dubious articles, such as Articles 7 and 29 (which undercuts the impact of the Declaration's beneficial provisions by giving states easy justifications for their violation). I would not say that the Universal Declaration has had a significant negative impact on human rights. But Sen's claims of a massive positive impact are at best greatly overstated.

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Jefferson's Moose Event Reminder:

Just a reminder to VCers that I'll be speaking about my new book on Jefferson and the Internet tomorrow (Wednesday) at a Book Forum sponsored by the good folks at the Cato Institute. [This will be the first of a series of these book events -- and I like the fact that it's taking place at Cato, one of the places where the "Jeffersonian" view of things has found a congenial home over the past couple of decades]. Details and registration info is at the website (the event is free, but requires pre-registration if you're going to attend in person); there will also be a live webcast (starting at noon).

It's an interesting and specialized genre, the "book event." I've got 15 minutes or so to talk, and I have to assume my audience has not read the book (yet!). So my job is to tell some sort of (brief) story about the book, and what's in the book, that is both complete in and of itself (so that the audience takes something away from it even if they never read the book) and entirely open-ended (so that they'll be dying to read the book and see how it all comes out). It's no mean feat - but if I do say so myself, I think I've got a nice little talk ready to go. After that, there will be comments from Jeff Rosen (The New Republic/GW Law)and Clive Crook (The Atlantic/The FT). Jeff and Clive come at things from different directions -- "different sides of the Atlantic," one might say -- and I have a strong suspicion they'll have interesting things to say about what I'm trying to do in the book.

So do come (or watch) if you can; it should be fun.

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Happy Birthday, Felix Mendelssohn!

Today is Mendelssohn's 200th birthday (Feb. 3, 1809) — which completes the trifecta of geniuses born within a 10 day period between Feb 3 and Feb 12, 1809 (with Darwin and Lincoln, of course, on Feb 12). [If any of you know of a comparable 10-day period, I'd love to hear what it was and who was born within it]

Mendelssohn is an under-appreciated composer, in my view. I wouldn't say he belongs in the very top rank (with Bach, Mozart, Beethoven, Schubert, Brahms . . .), but his body of chamber music (esp. the piano trios and the magisterial Octet) and symphonies (esp. #4) rank among true masterpieces of western music.

He should have had Mozart's publicist. [Mozart actually had a publicist - his father] Mozart gets all the historical mojo for being "the boy genius." But it was Mendelssohn, in fact, who displayed true genius far earlier than Mozart (or Schubert - or anyone else, for that matter). Mozart was an insanely talented musician as a boy - but as a composer, he wrote little of merit, and nothing of genius, while still a teenager. [To my ear, anyway] The stuff he wrote — the operas at age 9 and all that — are amazing in the way, to paraphrase Johnson, that a dog playing the violin is amazing: it's not how well it's done, but that it is done at all that amazes.

Mendelssohn, though, wrote the Octet and the Overture to a Midsummer Night's Dream when he was 16. Listen (hey, it's his birthday!) to those pieces, and try to imagine them emerging from the pen of a 16 year old. Mozart has nothing like it at that age. So: happy birthday Felix!

UPDATE: Thanks to R&R who points out in the comments that I'm taking some unfair swipes at Mozart. It's true, and I really don't want to be seen as taking swipes at Mozart -- I adore the guy, believe me. the comparison is more a way to get attention for Mendelssohn, who's not often mentioned in the same breath as the saintly Mozart, but who was just as magnificent a musician, and at just as early an age.

And I love arbitraryaardvark's suggestion that April 13-23, 1743 was another remarkable 10-day period for geniuses. :) DGP

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Should Lawprofs be Facebook "Friends" with Students?

Rob Vischer of Prawfsblawg has joined the ranks of law professors concerned about the ethics of facebook friendship with their students:

What does FB mean for the professor-student relationship? I'm not talking about whether the law school should use FB as a professional networking venture; I'm talking about what students know about you and what you know about your students. I still base my image of the law school professor on Phil Areeda, who I'm certain would have had me arrested if I had dropped by his office to chat about the weekend....

And now what have I become? Going out with students for a beer, fielding a flag football team, and playing basketball with students has always made me an enthusiast for the friendship that dare not speak its name, but now I've taken it to another level -- I'm FB friends with my students. I'm all up in their business, and they're in mine. Is it wrong? Is it a concern? Do any other faculty FBers deny student friend requests? Do you keep them on a separate friend list with more limited access to your page? At least for me, the notion of keeping a mysterious distance between students and myself was a non-starter, but have I (or my students) lost something in the process?

I commented on these issues in this post last year, responding to an earlier post by legal scholar Gene Koo. I still think that there is no problem with Facebook friendships between professors and students. It's a far from intimate relationship, to put it mildly. Of course, I don't put any extremely intimate or private material on my Facebook page; people who can see it are not "all up in [my] business." They just know a few basic facts about my work, background and interests. Putting much more than that up on Facebook is unwise for a variety of reasons that have nothing to do with academic ethics.

Students who see my Facebook page probably don't know as much about me as those who stop by my office regularly to talk about law, policy, or baseball. If the latter is a permissible form of student-faculty interaction, so too is Facebook "friendship."

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Monday, February 2, 2009

Famous Misunderstood Legal Quotations and Statements: Over at Prawfs, Howard Wasserman proposes an interesting law-geek game:
Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.
  To start things off, Howard offers up Justice Stewart's famous "I know it when I see it" line about hard-core pornography. That line is generally used to celebrate common sense and powers of intuition, but it was intended as a critical comment on the court's unintelligible legal standard for obscenity.

   For my own contribution, I offer the claim that the original Constitution is tainted because "slaves were only counted as 3/5 of a person." To be sure, the original Constitution was tainted by its failure to resolve the question of slavery. But those who point out the 3/5 compromise generally assume that that treating slaves as less than a person reflected the pro-slavery view. Not so. The 3/5 compromise concerned the counting of persons for purposes of state representation in the House of Representatives. As a result, it determined the political power of pro-slavery states relative to that of free states in Congress rather than the importance of the slaves as people:
Delegates opposed to slavery generally wished to count only the free inhabitants of each state. Delegates supportive of slavery, on the other hand, generally wanted to count slaves at their actual numbers. Since slaves could not vote, slaveholders would thus have the benefit of increased representation in the House and the Electoral College . . . . The final compromise of counting "all other persons" as only three-fifths of their actual numbers reduced the power of the slave states relative to the original southern proposals, but is still generally credited with giving the pro-slavery forces disproportionate political power in the U.S. government from the establishment of the Constitution until the Civil War.
  Any other suggestions? If so, please leave them in the comment section.
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Happiness Research and Legal Scholarship.

“Behavioral law and economics,” which combines insights from cognitive psychology with the rational choice paradigm used by law and economics, has so far relied on an economics-y standard of evaluation—efficiency—or forgone normative arguments altogether. But economists and psychologists have begun developing an alternative normative standard for evaluating law and policy, sometimes called the “happiness” approach, because it relies on surveys of self-reported happiness. These scholars argue that government should attempt to advance self-reported happiness rather than efficiency based on willingness-to-pay. The Journal of Legal Studies has just published the proceedings of a conference that addressed ways that this work can be used in legal scholarship. You can find it here. A few paragraphs from the introduction to the conference issue follow:

Economists who make normative proposals traditionally assume that policy should advance “efficiency,” usually in the Kaldor or Hicks sense, which defines efficiency in terms of whether the project’s winners can hypothetically compensate the project’s losers. A compensation criterion is used because it can be based on ordinal utilities, which puts a smaller information burden on the decision maker than cardinal utilities do. Ordinal utilities, unlike cardinal utilities, can (in principle) be inferred from observations of consumer behavior. By seeing how people trade off goods, willingness-to-pay (or willingness-to-accept) amounts can be derived and summed, so that alternative policy outcomes can be easily compared.

This approach has received a great deal of criticism over the decades, but it has survived mainly because no alternative method has commanded widespread agreement. In recent years, however, a small group of economists and psychologists have argued that an alternative method is available. This method, often called the “happiness approach,” relies on surveys that ask people to rate their happiness on a scale. Econometric analysis then finds correlations between ratings on the scale and various characteristics or experiences of the survey respondents—wealth, income, family relationships, and so forth. Though still regarded with skepticism in many quarters, the happiness approach has scored some notable successes. The various factors that are correlated with happiness appear to be robust: they recur in different surveys and are correlated with other factors that are plausibly linked to happiness such as physical well-being as measured with clinical tests.

In addition, many of the findings have a certain plausibility, while at the same time deviating from the results of willingness-to-pay and willingness-to-accept measures. Happiness improves with wealth but only to a point, and people are less happy when their neighbors are wealthier than they are. Happiness is correlated with health, but the happiness levels of people who suffer grievous injuries rebound with the passage of time. Happy people have friends and families, but adults with teenagers are less happy than adults with younger or older children. Educated and politically engaged people are happier.

The idea that policy should focus on happiness rather than preference orderings is hardly new. Indeed, the happiness view predates the preference-orderings view. Jeremy Bentham advocated a form of utilitarianism that maximized pleasures and minimized pains, an idea that is similar, though not identical, to the premise that self-reported happiness measures should be used. Economists subsequently abandoned this view in favor of ordinal utility functions. But the Benthamite approach never really went away. It has lurked at the margins of mainstream economic thought for decades. The most famous example is the Easterlin paradox. Richard Easterlin (1973) was the first to observe that self-reported happiness is correlated with wealth at the individual level but not, above a threshold, at the aggregate level: he found that happiness does not appear to increase with gross domestic product in wealthy countries (this finding has been challenged; see Stevenson and Wolfers 2008).

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Comments Off: Some may have noticed that, since the beginning of the year, I have been blogging more, but without comments. These two developments are related. Over time I found monitoring comments, which I believe I have an obligation to do, to be such a drag, as well as time consuming, that it undermined my desire to blog at all. So gradually I got out of the habit. As Orin noted last week, Jack Balkin has largely turned off comments for his own posts on Balkinization. Since Jack's reasons largely track mine, I thought I would quote his post in full:
Since last week I have implemented a new policy on the blog. The default rule is that comments are turned off. Each author will decide individually whether to turn the comments on for his or her postings.

For the first year and a half of this blog, there were no comments, and the blog operated quite successfully. I added comments in the middle of 2004. (Comments you find earlier than that are probably comment spam that was added later on.) Many blogs have developed successful communities of commenters, with many very interesting and substantive contributions and discussions. Unfortunately, this has not happened here.

Generally speaking, there are two things you want from a comments section: quality of comments, and civility. If you cannot have one, at least you want the other. Recently, with some exceptions, it has become obvious that neither is occurring in our comments sections here. Instead, the comments sections are populated by regular trolls and many threads have turned into little more than name-calling. There is very rarely any serious analysis; mostly there is point scoring and vitriol. Many regular readers have written to say that they find the comments section a distraction and think the blog would be far better without it.

About a year or so ago, after considerable frustration with the quality and the incivility of the comments, I turned off the comments section for a bit to calm things down and to see whether, after a time out, a culture of civility would reassert itself. It did so only briefly; then the trolls reappeared, the name calling began again, and things went downhill once more.

For the time being, therefore, I have decided to switch the default to no comments and not to have comments on my own posts except in special situations. Those members of the blog who wish to have comments are free to do so; Ian Ayres, for example, has enabled comments on some of his recent posts. I may experiment with moderated posts in the future, but moderating takes considerable time and effort, more time than I have at the present.
I cannot speak for the quality and tenor of comments on other VC posts--they may be terrific--but for me, to paraphrase Cosmo Kramer, I'm out there without comments and lovin' it.


A New Meme: Instapundit reader Dale Britton emails: “I think it is incumbent upon Obama to nominate Wesley Snipes for something immediately.”

Update:Reader Eliot Williams emails: "That's silly....but [Michael] Phelps for drug czar might win me over." As for this suggestion, Radley Balko offers "A Letter I Would Like to See (But Won't)" from Michael Phelps retracting his apology, including this:

Here’s a crazy thought: If I can smoke a little dope and go on to win 14 Olympic gold medals, maybe pot smokers aren’t doomed to lives of couch surfing and video games, as our moronic government would have us believe. In fact, the list of successful pot smokers includes not just world class athletes like me, Howard, Williams, and others, it includes Nobel Prize winners, Pulitzer Prize winners, the last three U.S. presidents, several Supreme Court justices, and luminaries and success stories from all sectors of business and the arts, sciences, and humanities.

So go ahead. Ban me from the next Olympics. Yank my endorsement deals. Stick your collective noses in the air and get all indignant on me. While you’re at it, keep arresting cancer and AIDS patients who dare to smoke the stuff because it deadens their pain, or enables them to eat. Keep sending in goon squads to kick down doors and shoot little old ladies, maim innocent toddlers, handcuff elderly post-polio patients to their beds at gunpoint, and slaughter the family pet.

Tell you what. I’ll make you a deal. I’ll apologize for smoking pot when every politician who ever did drugs and then voted to uphold or strengthen the drug laws marches his ass off to the nearest federal prison to serve out the sentence he wants to impose on everyone else for committing the same crimes he committed. I’ll apologize when the sons, daughters, and nephews of powerful politicians who get caught possessing or dealing drugs in the frat house or prep school get the same treatment as the no-name, probably black kid caught on the corner or the front stoop doing the same thing.
(Hat tip: Laura Barnett)

"So Help Me God" in Judicial Oath:

Reader Dominic Markwordt writes:

I happened to be doing some research for my law review comment and came across the oath all U.S. judges/justices are required to take.

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, _______ _______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _______ under the Constitution and laws of the United States. So help me God." 28 U.S.C.A. § 453....

Is it constitutional? It would seem suspect under the Court's current establishment clause jurisprudence given that the oath required for the president in the Constitution does not include the phrase "So help me God." ...

Well, the judicial oath dates back to 1789, and the same First Congress that proposed the First Amendment. Simply including this religious reference would therefore not be an unconstitutional endorsement of religion, under the Marsh v. Chambers Give Me That Old-Time Religious Speech principle.

The Supreme Court has also read the Establishment Clause as prohibiting the coercion of religious behavior. This prohibition is much less controversial than is the prohibition of endorsement of religion. (Lee v. Weisman, which held high school graduation prayer to be unconstitutional coercion, was controversial, but because the dissenters didn't see the prayer as coercive -- they agreed, as I read the opinion, that genuine coercion of religious behavior was indeed unconstitutional.)

On the other hand, in this instance the prohibition of coercion is so uncontroversial that the statute will almost certainly be read as not requiring the "so help me God." Recall that Article VI of the Constitution says (emphasis added),

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The statute echoes this by allowing an "affirmation," as did the 1789 statute. But the whole point of an affirmation is that it does not involve calling on God; an affirmation would thus necessarily omit the "so help me God." (As I understand it, the affirmation option was placed in the Constitution because some Christian denominations -- such as Quakers -- oppose swearing to God.) And this is further confirmed by the No Religious Test Clause; requiring acknowledgment of God would itself be a religious test.

So never fear coercion here: No judge has to say "so help me God"; he is free to affirm and thus avoid mention of God or even of swearing (with its potentially religious connotation) altogether. But if you're worried about endorsement, Marsh says such endorsement is fine.

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Chicago Speeches This Week: Every year I like to celebrate my birthday in my home town of Chicago where I can eat my favorite comfort food: Teibels Family Restaurant for lake perch (boned and buttered), Carson's, The Place for Ribs for baby back ribs, and Walker Brothers, The Original Pancake House for apple pancakes. This year, I am also speaking on "Was Lochner Right? Natural Rights and the Fourteenth Amendment" at four Federalist Society law student chapter sponsored events. Here is the info:

Wednesday, February 4:
11:50am - DePaul
- with comment by Prof. David Franklin
25 E. Jackson
Room 904

4:00pm Chicago-Kent
565 West Adams Street
Room C40

Thursday, February 5:
12:15pm - University of Chicago

1111 E. 60th St
Room III

4:00pm Loyola
25 E. Pearson Street
Room 1104

Update:A reader emails that there are Original Pancake House restaurants in VA and MD, which is true and they are good. But Walker Bros. changed their recipe for apple pancakes, which now bear no relationship to the dish that is served at other Original Pancake House restaurants--or anywhere else I have tried them.

Also, Teibel's is one of the only places in the country that serves lake perch, which used to be caught in Lake Michigan, but which now comes from Canada. Phil Smidt's was another Chicago institution that specialized in lake perch but it is no more. They prepared their perch somewhat differently, and both styles were delicious, but I always found the "sides" at Teibel's to be much better than what accompanied the perch at Phil Smidt's. Friday nights are still all-you-can-eat. Teibel's gets the highest rating from Roadfood.com, which says, "Overall: Worth driving from anyplace."

Or flying from DC.Lake Perch from Teibels

How the New Deal Prolonged and Deepened the Great Depression:

Economists Harold Cole and Lee Ohanian have written an interesting Wall Street Journal op ed summarizing their important research showing that the New Deal prolonged and deepend the Great Depression of the 1930s:

The New Deal is widely perceived to have ended the Great Depression, and this has led many to support a "new" New Deal to address the current crisis. But the facts do not support the perception that FDR's policies shortened the Depression, or that similar policies will pull our nation out of its current economic downturn.

The goal of the New Deal was to get Americans back to work. But the New Deal didn't restore employment. In fact, there was even less work on average during the New Deal than before FDR took office....

Why wasn't the Depression followed by a vigorous recovery, like every other cycle? It should have been. The economic fundamentals that drive all expansions were very favorable during the New Deal...

So what stopped a blockbuster recovery from ever starting? The New Deal. Some New Deal policies certainly benefited the economy by establishing a basic social safety net through Social Security and unemployment benefits, and by stabilizing the financial system through deposit insurance and the Securities Exchange Commission. But others violated the most basic economic principles by suppressing competition, and setting prices and wages in many sectors well above their normal levels. All told, these antimarket policies choked off powerful recovery forces that would have plausibly returned the economy back to trend by the mid-1930s.

As they say, read the whole thing.

I previously blogged about this issue in this post. Unfortunately, many today are bent on repeating some of the mistakes of the 1930s.

UPDATE: For those interested, here is an ungated link to Cole and Ohanian's well-known 2004 Journal of Political Economy article that provides evidence showing that the New Deal prolonged the Depression by some 6-7 years.

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Sunday, February 1, 2009

Rainforest Resurgence:

Farmland is beginning to revert back to tropical forest in many countries. The NYT reports:

new “secondary” forests are emerging in Latin America, Asia and other tropical regions at such a fast pace that the trend has set off a serious debate about whether saving primeval rain forest — an iconic environmental cause — may be less urgent than once thought. By one estimate, for every acre of rain forest cut down each year, more than 50 acres of new forest are growing in the tropics on land that was once farmed, logged or ravaged by natural disaster.

“There is far more forest here than there was 30 years ago,” said Ms. Ortega de Wing, 64, who remembers fields of mango trees and banana plants.

The new forests, the scientists argue, could blunt the effects of rain forest destruction by absorbing carbon dioxide, the leading heat-trapping gas linked to global warming, one crucial role that rain forests play. They could also, to a lesser extent, provide habitat for endangered species.

The idea has stirred outrage among environmentalists who believe that vigorous efforts to protect native rain forest should remain a top priority. But the notion has gained currency in mainstream organizations like the Smithsonian Institution and the United Nations, which in 2005 concluded that new forests were “increasing dramatically” and “undervalued” for their environmental benefits. The United Nations is undertaking the first global catalog of the new forests, which vary greatly in their stage of growth.

This could be a very positive trend.

The United States had a very similar experience. Throughout the 18th and 19th centuries, net forestland declined dramatically, but began to grow back in the earth 20th century. The United States has experienced net forest growth for most of the past century. Whole regions of the country that were largely denuded, including much of the northeastern United States. Areas in the east that are designated "wilderness" actually consist of second-growth forest on lands that had been cleared for farming. The shift of agriculture to the midwest combined with increases in agricultural productivity, along with other factors, including the displacement of draught animals with motorized vehicles and farm equipment, combined to facilitate dramatic forest regeneration with dramatic ecological benefits.

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Gitmo to Close; Rendition to Continue?

The LA Times has a story today noting a conspicuous absence among the Bush Administration counter-terror policies reversed or limited by the Obama Administration: Extraordinary Rendition.

"Obviously you need to preserve some tools — you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."

One provision in one of Obama’s orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis."

Despite concern about rendition, Obama's prohibition of many other counter-terrorism tools could prompt intelligence officers to resort more frequently to the "transitory" technique.

The decision to preserve the program did not draw major protests, even among human rights groups. Leaders of such organizations attribute that to a sense that nations need certain tools to combat terrorism.

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured — but that designing that system is going to take some time."

UPDATE: Hilzoy thinks there is less to the story than meets the eye. A real possibility is that the Obama Administration probably recognizes the utility of rendition, and wants it available for extreme circumstances, but also wants it done more responsibly. This was the position advocated by Georgetown's Daniel Byman in an op-ed I blogged about some years back.

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Sunday Song Lyric: A reader suggests "Fallen on Hard Times" by Jethro Tull as a Sunday Song Lyric. It seems rather fitting given today's economic and political climate. The song was originally released on Tull's 1982 album, The Broadsword and the Beast. Here are two verses:
Fallen on hard times — but it feels good to know
that milk and honey's just around the bend.
Running on bad lines — we'd better run as we go,
Tear up, tear up the overdraft again. . . .

Fallen on hard times — and there's nowhere to hide
Now they've re-possessed the Rolls Royce and the mink.
Turning on the peace sign — and it's back to the wood.
Soon there will be raised a holy stink.
The full lyrics are available here, and there's also a live performance on YouTube.
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